Mayo v. Davidge , 8 N.Y. St. Rep. 844 ( 1887 )

Barnard, P. J.:

The complaint is one' for the-’foreclosure of a mortgage made by Sallie M. Davidge and her husband for $2,000. A judgment for a deficiency is asked against both the '-wife and the husband, and the loan, so far as disclosed by the -complaint, was made to them jointly. They answer and, among other defenses, aver a loan made by the husband to the plaintiff, a balance due thereon, an assignment of that balance to one Longuemon, and a reassignment of the same by him to the defendants Davidge and husband. The answer does not contain an averment that the assignment was made or that the defendants above named obtained the title thereto before the commencement of this -action. A demurrer was interposed to the counterclaim thus pleaded. By section 501 of the Code the character of a counter-claim is established: In any action on contract, “ any other cause of action- on contract existing at the commencement of the action.” By section 495 it is made a cause for demurrer to a counterclaim that it is ¡not of the character specified in section 501. It is, therefore, essential to a,counter-claim that it exist in the hands of the defendants who 'set. it up, at the time of the commencement of the action. Thed'ights of the parties become fixed according to the-facts which existed.wfoen the plaintiff commenced his action. This-, is in accordance with ‘the rules of pleading, as; they- have' always; existed. It is never proper for a party defendant to- buy a> defense1 or a counter-claim after 'he 'was -.sued. Insolvency was- never- ai. reason why the rules- of ’pleading-'shoa'ld vary. AIT parties- are; under the same rules of pleading, ilt!cannot be1 assumed that the; wife, under the allegations- of the complaint, is not liable for the-deficiency and that the husband is alone liable, so as to prevent the counter-claim on behalf of the husband. The husband does not own the same; his former title passed from him and the reassignment, was taken to the wife and husband. Their right to set it up does not exist, because it was acquired after suit brought.

Judgment affirmed, with costs.

Dykman, J., concurred; Pratt, J., not sitting.

Order sustaining demurrer to counter-claim, and judgment affirmed, with costs.